FILED

United States Court of Appeals

Tenth Circuit

April 15, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 13-3146

PHILIP ANDRA GRIGSBY,

a/k/a philag62@yahoo.com,
a/k/a mufdvr62@yahoo.com,
a/k/a imacumgobbler@yahoo.com,
Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(D.C. No. 6:12-CR-10174-JTM)

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.
John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for
Defendant-Appellant.

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Philip Grigsby says his 260-year sentence imposed pursuant to the
child pornography production guideline, U.S.S.G. 2G2.1, is procedurally and

substantively unreasonable because the guideline is defective.

According to

Defendant, the production guideline routinely generates offense levels that result in
a recommended guideline sentence in excess of the statutory maximum, and fails to
distinguish between levels of culpability by establishing enhancements for conduct
present in most cases and thus undeserving of punishment beyond the core offense.
Defendant asks us to remand for [re]sentencing without regard to the [G]uidelines.
Unfortunately for Defendant, a district court does not err by deferring to the
Guidelines where the sentence imposed is justified in light of the factors set forth
in 18 U.S.C. 3553(a). 1 Exercising jurisdiction pursuant to 18 U.S.C. 3742(a)(1),
we uphold Defendants sentence.
I.
Defendant pled guilty to eight counts of sexual exploitation of a nine-year-old
child for the purpose of producing visual depictions in violation of 18 U.S.C.
2251(a), one count of possessing with intent to view child pornography in violation
of 18 U.S.C. 2252(a)(4)(B), and one count of being a felon in possession of a
firearm in violation of 18 U.S.C. 922(g). Based on a total offense level of 43 and
a criminal history category of II, Defendants initial guideline imprisonment range

Section 3553(a) sets forth various factors a district court must consider in
imposing sentence on a defendant. These include, among other factors, the nature
of the offense and characteristics of the defendant, as well as the need for the
sentence to reflect the seriousness of the crime, provide adequate deterrence, protect
the public, and provide the defendant with needed training or treatment.
2

under the 2012 version of the Guidelines was life.

But because the statutory

maximum sentence of 260 years was less than life, U.S.S.G. 5G1.2(b) established
the former term as the recommended guideline sentence.

Following that

recommendation, the district court sentenced Defendant to 260 years imprisonment.

In deciding Defendants sentence was sufficient but not greater than necessary to
meet the sentencing factors identified in 3553(a)(2), the court referred to the
emotional damage Defendant caused his victim, the antisocial behavior Defendant
had engaged in over the course of his life, and the publics need for protection from
Defendant. The court discounted Defendants difficult childhood as outweighed by
the harm he had caused. 2
II.
We review a sentence of imprisonment for reasonableness under an abuse of
discretion standard. United States v. Kieffer, 681 F.3d 1143, 1164 (10th Cir. 2012).
In sentencing a defendant, first the district court shall consider . . . the kinds of
sentence and the sentencing range established for . . . the applicable category of
offense committed by the applicable category of defendant as set forth in the
guidelines. 18 U.S.C. 3553(a)(4)(A). Unremarkably then, the Supreme Court

We decline to recount the heinous facts underlying Defendants convictions.

Suffice to say the calculation of Defendants total offense level based on the facts
was detailed. Defendants offense level was enhanced because, among other things,
his crimes involved (1) a family member who had not attained the age of twelve
years and (2) material that portrayed sadistic or masochistic conduct or other
depictions of violence. See U.S.S.G. 2G2.1(b).
3

has told us the Guidelines should be the starting point and initial benchmark in
sentencing. Gall v. United States, 552 U.S. 38, 49 (2007). The Guidelines are the
natural starting point from which the sentencing court exercises its discretion under
3553(a). Kieffer, 681 F.3d at 1164 (internal quotations omitted). In this Circuit,
a within-guideline-range sentence that the district court properly calculated, i.e.,
sentencings procedural component, is entitled to a rebuttable presumption of
reasonableness. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).
A defendant may rebut this presumption by demonstrating his sentence is
unreasonable when viewed in light of the 3553(a) factors, i.e., sentencings
substantive component. Id.
III.
On appeal, Defendant tells us the same thing he told the district court:
U.S.S.G. 2G2.1 is flawed and any reliance thereon necessarily constitutes both
procedural and substantive error. Defendant says the district court should have
foregone any consideration of 2G2.1, and sentenced him based only upon its
consideration of the 3553(a)(1) & (2) factors. 3 To argue his point, Defendant
principally relies on a government report, namely United States Sentencing
Commission, Report to Congress: Federal Child Pornography Offenses (Dec. 2012),

Aside from a reference to his troubled childhood, a fact the district court
expressly considered at sentencing, Defendant makes little effort (probably a wise
choice) to relate the underlying facts of his case to the 3553(a) factors.
4

available at:

http://www.ussc.gov/Legislative-and-Public-Affairs/Congressional-

Testimony-and-Reports/Sex-Offense-Topics/201212-Federal-Child-PornographyOffenses/ (visited April 1, 2014) (Commission Report), and the Second Circuits
decision in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).
A.
In Dorvee, the defendant pled guilty to one count of distribution (rather than
production) of child pornography. The district court sentenced him to the statutory
maximum of 240-months imprisonment. On appeal, the defendant challenged both
the procedural and substantive components of his sentence. The Second Circuit first
held the district court committed significant procedural error by erroneously
calculating the defendants guideline range. According to the court, this error alone
warranted remand for resentencing. 4

Notwithstanding, the court further held

Defendants sentence was substantively unreasonable based upon the district courts
misapplication of the 3553(a) factors.
Lastly and most importantly for present purposes, the Second Circuit observed
the district courts substantive error was compounded because 2G2.2 is
fundamentally different from most guidelines:

Although the defendants actual sentence was consistent with his

recommended sentence under the child pornography distribution guideline, U.S.S.G.
2G2.2, the Second Circuit provides no presumption of reasonableness to a withinguidelines-range sentence. Dorvee, 616 F.3d at 183.
5

Sentencing Guidelines are typically developed by the Sentencing

Commission using an empirical approach based on data about past
sentencing practices. However, the Commission did not use this
empirical approach in formulating the Guidelines for child pornography.
Instead, at the direction of Congress, the Sentencing Commission has
amended the Guidelines under 2G2.2 several times since their
introduction in 1987, each time recommending harsher penalties.
Dorvee, 616 F.3d at 184 (internal citation omitted). As a result, the court explained
that 2G2.2s sentencing enhancements routinely result in Guidelines projections
near or exceeding the statutory maximum, even in run-of-the-mill cases. Id. at 186.
The Second Circuit opined that a district court would not abuse its discretion
by concluding the distribution guideline typically yields a sentence greater than
necessary to achieve the goals of 3553(a), because that guideline does not
exemplify the Commissions exercise of its characteristic institutional role. Id.
at 188 (quoting Kimbrough v. United States, 552 U.S. 85, 10910 (2007)). The
Commission Report essentially endorsed the Second Circuits view of 2G2.2,
urging the Commission and Congress to revise the non-production sentencing
scheme to better reflect the growing body of knowledge about offense and offender
characteristics and to better account for offenders varying degrees of culpability and
dangerousness. Commission Report at 331 (emphasis added).
B.
Defendants authorities undoubtedly stand for the proposition that district
courts should carefully apply the child pornography distribution guideline and remain
mindful that they possess broad discretion in fashioning sentences under U.S.S.G.
6

 2G2.2. So too do the number of reported cases where district courts have rejected
application of 2G2.2 for want of an empirical basis. 5 See United States v. Brooks,
628 F.3d 791, 780 (6th Cir. 2011) (citing cases). But neither Dorvee nor the
Commission Report stand for the proposition that any application of 2G2.2 will
yield an unreasonable sentence. See Unites Stated v. Maulding, 627 F.3d 285, 287
(7th Cir. 2010).
In its December 2012 report, the Sentencing Commission observed that
[s]entencing in federal production cases has been less controversial than in nonproduction cases, perhaps because of the relatively fewer number of reported cases
addressing 2G2.1. Nonetheless, Defendant may be correct when he says the child
pornography production guideline, 2G2.1, suffers from the same apparent defect
as the distribution guideline, 2G2.2. See Commission Report at 247. But this does
not mean a within-guideline-range sentence based on a guideline lacking an
empirical basis is necessarily unreasonable, and none of our sister circuits have ever
so held. We agree with the Fifth Circuit that Congress and the Commission are
responsible for altering the Guidelines:
Empirically based or not, the Guidelines remain the Guidelines. . . .
The Supreme Court made clear in Kimbrough v. United States that a
district judge must include the Guidelines range in the array of factors
warranting consideration, even if the Commission did not use an

In Kimbrough, 552 U.S. at 96, the Supreme Court noted that [i]n the main,
the Commission developed Guidelines sentences using an empirical approach based
on data about past sentencing practices.
7

empirical approach in developing sentences for the particular offense.

Accordingly, we will not reject a Guidelines provision as
unreasonable or irrational simply because it is not based on
empirical data . . . .
United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011) (internal footnotes
omitted); accord United States v. Ngheim, 432 F. Appx 753, 757 (10th Cir. 2011)
(unpublished) (To be sure, district courts that disagree with 2G2.2 may vary from
the Guidelines. But if they do not, we will not second-guess their decisions under
a more lenient standard simply because the guideline is not empirically-based.
(internal ellipses and quotations omitted)).
Accordingly, we reject Defendants categorical challenge to U.S.S.G.
2G2.1. 6
AFFIRMED.

We note that during the course of his direct appeal, Defendant, despite the
fact he is represented by counsel, has submitted numerous pro se filings to the court
requesting various actions on our part. We have long adhered to the policy on direct
appeal of only addressing issues raised by counsel, however, and we invoke that
policy here. See United States v. Coleman, 9 F.3d 1480, 1487 (10th Cir. 1993). We
therefore decline to address the numerous claims Defendant raises in his pro se
filings, including his claim of ineffective assistance of counsel. That claim is more
properly brought by way of collateral attack under 28 U.S.C. 2255.
8